Philip Joseph: Brexit: A View from Afar

Editors’ note: In this blog post the distinguished New Zealand jurist, Professor Philip Joseph, reflects upon the fall-out from the referendum vote on 23 June. The post is a precis of a longer paper which can be read here.

philip-josephAn uneasy truth:  Brexit was borne out of sheer political miscalculation and an unshakable belief that the Remain vote would prevail. David Cameron gambled and lost.  He will be remembered as the Prime Minister who took Britain out of Europe.  Then, the reality dawned: there was no contingency plan should the unthinkable happen.  It was the Cameron Government’s considered view not to instruct its key ministries to plan for the possibility of a Leave victory.  This was astonishing politics.  The House of Commons Foreign Affairs Committee termed the lack of forward planning “gross negligence”.  The fallout precipitated an immediate leadership vacuum: Cameron resigned as Prime Minister, Boris Johnson quit the leadership contest over who would replace Cameron as Prime Minister, and Nigel Farage resigned as the leader of UKIP.  The Government now faces the institutional challenge of finding seasoned international negotiators who can stare down their EU counterparts.

The longer paper which I have written examines Article 50 of the TEU, which is the trigger mechanism for a Member State to exit the Union.  This paper asks: What steps may, or must, be taken in order to invoke Article 50 and commence the withdrawal process?  There are two schools of thought: one is that the Government cannot commence the Article 50 process without prior legislative authorisation; the other is that the triggering of Article 50 would be an exercise of the royal prerogative in external affairs requiring no legislative authorisation.  Both views are plausible, although one is clearly preferable to the other.  The European Communities Act 1972 was the legislative vehicle that took Britain into Europe, and this Act remains on the statute book to this day.  The prerogative is necessarily subject to and controlled by legislation, which means that the prerogative cannot be used to trigger Article 50 without Parliament first providing the necessary authority.  Events are moving quickly.  The contested legal position is now the subject of a legal challenge in the courts, with a fixture date set down for mid-October.  These might be the most important proceedings to come before the British courts in a very long while.  The prospect of the challenge succeeding would sorely test the resolve of the majority of parliamentarians, who remain firmly pro-EU.  The paper observes: “We simply do not know which way the Commons would vote.” It also ends on a sober note: “So, at every level of British institutional life, things are not as settled as they might be.”

Philip A. Joseph is Professor of Law at the University of Canterbury, New Zealand.

(Suggested citation: P. Joseph, ‘Brexit: A View from Afar’, U.K. Const. L. Blog (23rd Sept 2016) (available at